Yesterday the Supreme Court of India, after quashing a sedition case registered by the Himachal Police against veteran journalist Vinod Dua, ruled that no journalist could be arrested on sedition charges merely for harshly criticising the government.

The sedition case against Dua was filed after he put up a YouTube video in March 2020 criticising Prime Minister Narendra Modi and his government for the misery of migrant labourers during last year's lockdown.

Quashing the case, Justices U. U. Lalit and Vineet Saran upheld the right of every journalist to criticise, even brutally, the measures of the government with a view to improving or altering them through legal means. The judgment stated that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Upholding the Kedar Nath Singh case verdict of 1962, it said a citizen has the right to criticise the government without inciting people to violence.

The pro-free speech judgment brings much hope. It makes one hark back to the poet Rabindranath Tagore’s "Heaven of Freedom”, which says freedom from fear is the real freedom for any country. To be free and fair, journalism has to be fearless.

The sedition law, Section 124A of the Indian Penal Code, 1860, is much feared. Free speech crusaders have long been demanding its repeal, citing wanton use of the law. The fear of sedition law has impeded the freedom of speech and media freedom.

Governments have been in the habit of defending the use of the sedition law saying it is required to “tackle” terrorists, insurgents and secessionists. But there are other laws to deal with these problems. The journalism fraternity has often suggested that at least the courts issue guidelines for making arrests and filing cases under sedition law and other harsh laws such as the Unlawful Activities Prevention Act.

Intimidation of journalists, verbal and physical assaults on them, framing them with criminal cases and denial of advertisements to “hostile” media houses that question the powers that be, are common in India. Journalists themselves generally view these as “occupational hazards”. But the growing number of journalists booked under the sedition law is alarming. The law can muzzle the voices of dissent and harm democracy.

Read: Concern over sedition charges against journalists in India

On January 17, 2021, editor-in-chief Dhiren Sadokpam and executive editor Paojel Chaoba of an online newspaper in the northeastern state of Manipur were arrested under the sedition law and the UAPA. Their offence was the publication of an article, “Revolutionary journey in a mess”. The author of the article, M. Joy Luwang, was also arrested under the same laws. It was an opinion piece.

On January 28, 2021, sedition charges were slapped on several nationally known journalists, such as Rajdeep Sardesai of India Today, Mrinal Pande of the National Herald, Zafar Agha of Qaumi Awaz, and Paresh Nath and Vinod K. Jose of The Caravan magazine, for reporting that a farmer had died in police firing in Delhi on Republic Day. Farmers have been on a massive agitation in the national capital against recent legislation on sale of their produce and had laid siege to the Red Fort. Shashi Tharoor, MP, was also booked for sedition as he had tweeted that a farmer had died in police firing. The journalists and the MP had gone by early reports of a farmer’s death in police firing, but later the police declared that the death was due to a tractor accident, and not to any bullet.

The cases were registered under Indian Penal Code sections 124A (sedition); 295A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs); 504 (intentional insult with intent to provoke breach of peace); 506 (criminal intimidation); 34 (acts done by several persons in furtherance of common intention); and 120B (criminal conspiracy). The journalists were also booked under the Information Technology Act. All the journalists have been granted protection from arrest in the case.

The Editors Guild of India condemned the “intimidating” manner in which the cases were filed across five states ruled by the Bharatiya Janata Party. Journalists condemned the “liberal use” of the sedition law at a joint press meeting organised by the Press Club of India (PCI), the Editors’ Guild of India, the Press Association, the Indian Women’s Press Corps (IWPC), the Delhi Union of Journalists and the Indian Journalists Union. “Often, the punishment for criticism of the government has been the long and exhausting legal process itself, as the sedition charge does not stand the scrutiny of law,” they lamented.

“This is a pathetic excuse on the part of the state governments concerned. In a moving story, things change on a regular basis. Accordingly, the reporting reflects the circumstances. When large crowds are involved and the air is thick with suppositions, suspicions and hypotheses, there can sometimes be a divergence between earlier and later reports. It is criminal to ascribe this to motivated reporting, as is sought to have been done,” stated the Press Club of India.

Seema Mustafa, the president of the Editor’s Guild, said, “What kind of journalism can be practised in times like these?” She said, “These charges are meant not only to intimidate and harass the journalists but to also terrorise professionals, to make you afraid to do your job.”

The list of journalists booked under the sedition law is growing. In May 2020, Dhaval Patel, editor and owner of a Gujarati news portal, Face of Nation, was charged with sedition and detained by the police for publishing a report that suggested that the political leadership in the state would change. He was accused of spreading panic and charged under Section 54 of the Disaster Management Act (DMA). Four months later, the Gujarat High Court quashed the charges — Patel had tendered an unconditional apology.

On October 5, 2020, Siddique Kappan, a Delhi-based journalist working for a Malayalam news portal, Azhimukham, was arrested in Mathura when he tried to visit the family of a 19-year-old girl who was raped in the Hathras district of Uttar Pradesh. The police accused him of sedition saying he was part of a globally funded conspiracy to foment caste riots in Uttar Pradesh. Kappan continues to be in the Mathura jail, and the journalist fraternity calls it “arbitrary detention”.

In October 2020, Manipur-based journalist Kishore Chandra Wangkhem was arrested on charges of sedition for responding to a social media post by the wife of a BJP politician. He had been arrested in 2018 under the National Security Act and charged with sedition in another case. That was for criticising the Rashtriya Swayamsevak Sangh, Chief Minister N. Biren Singh and Prime Minister Narendra Modi. The High Court had quashed the charges then.

In May 2018 Kamal Shukla, editor of Bhumkal Samachar of Chhattisgarh, was booked for sedition after he shared a cartoon on Facebook. The cartoon was about the Supreme Court’s observations on the death of a judge in 2014.

“There seems to be a common prism through which various state governments are seeing journalists,” Anand K. Sahay, president of the Press Council of India, said after sedition cases were filed against six journalists who reported the farmer’s death in police firing.

Read: Media in chains — The cost of speaking truth to power in South Asia

Besides journalists, a number of writers, activists and celebrities have been arrested under sedition laws in the past two decades. Some of the well-known cases are the ones filed against politician Praveen Togadia (2003), doctor Binayak Sen (2007), writer Arundhati Roy (2010), cartoonist Aseem Trivedi (2012), politician Hardik Patel (2015), actor Kangana Ranaut (2020). Each arrest sparked debate over the misuse of the “archaic” law, but to no effect.

The Jawaharlal Nehru University (JNU) sedition case (2016) was a turning point in the student movement in India. Three student leaders — Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya — were accused of allegedly chanting “anti-national” slogans during a demonstration in the university to mark the third anniversary of the execution of Afzal Guru, a medical student from Kashmir who was convicted of masterminding an attack on the Indian parliament in 2001. The three students spent several weeks in Tihar Jail in Delhi before they were granted bail, and they continue to attend hearings in the five-year-old case.

What has come as a shock is the fact that cases of sedition have been filed against ordinary people for what appear to be innocuous actions.

In January 2020, a play staged by students of the Shaheen Primary School in Bidar in the southern state of Karnataka resulted in a sedition case against the headmistress and the management of the school. The play was on the controversial Citizenship (Amendment) Act, which allegedly discriminates against Muslims. A ten-year-old girl from class six who appeared in the play allegedly mouthed “derogatory words” against the prime minister. The police arrested the girl’s mother, Najbunnisa, 35, and the headmistress, Fareeda Begum (52).

I met Najbunnisa inside the Bidar jail. The widow told me that she had moved to Bidar city from Hallikhed village (Humnabad district) to provide a good education for her daughter. “I don't know why I was arrested. How can an uneducated person like me teach my daughter about CAA or NRC (National Register of Citizens)?” she asked. Her tired eyes lit up only at the mention of her daughter. “My child is all alone at home. I want to be released soon,” said Najbunnisa. She was granted bail more than a month after her arrest.

In February 2021, a tweet by the young climate activist Greta Thunberg in support of the ongoing farmer agitation in Delhi landed a 22-year-old climate activist in India, Disha Ravi, in the police net. The Delhi Police picked up Disha from her Bengaluru residence on February 13 suspecting her role in creating and sharing a “toolkit” (a Google document with campaign information) for supporting the agitation. The cyber cell of the Delhi Police filed a case of sedition, criminal conspiracy and promoting hatred against the "creators" of the toolkit.

The police said it exposed a “conspiracy” by an organised overseas network to "instigate" the farmer protests, especially the Republic Day violence in Delhi. It was created by a Canada-based pro-Khalistani organisation called Poetic Justice Foundation and had a proper "action plan" for a digital strike and it called for physical protests before Indian embassies and local government offices, said the police. Two other activists, Shantanu Muluk and lawyer Nikita Jacob, they said, were part of the conspiracy. Disha was released on bail after 10 days.

A graduate in business administration from Mount Carmel College, Disha had launched, along with two friends, the Bengaluru chapter of the climate group, Fridays for Future, on March 15, 2019. A year before her arrest, she talked to me in January 2020 about her passion for environment. Practising sustainability, veganism and minimalism, she said, was the first lesson for a climate activist. How ironical that Disha, who cared for the planet, was charged with sedition, for “waging a proxy war” against the country!

Once out on bail, Disha took to Twitter to talk about her climate activism and her support to the farmer agitation. “It is about being radically inclusive of all groups of people, so that everyone has access to clean air, food and water,” she wrote.

Activist lawyer Prashant Bhushan had tweeted: "When one sees how young, selfless public-spirited activists like #DishaRavi & #NodeepKaur are being arrested in India today, I am reminded of the story of Sophie Scholl who was beheaded by guillotine in Nazi Germany for resisting the Nazis.”

In February 2020, Amulya Leona, a 20-year-old journalism student in Bengaluru, who chanted “Pakistan Zindabad” during her speech at a protest against CAA and NRC, was charged with sedition. Leona was sharing the dais with the politician Asaduddin Owaisi, president of the All India Majlis — Ittehad-ul-Muslimeen. Her action came as a shock to the organisers of the event, and they rushed to the mike and cut her short. Leona said she believed the whole world was one and that she had intended to salute all countries to make her point, but could not do so because the organisers had intervened. She spent three months in jail before she got bail.

The sedition law in India was drafted by Thomas Babington Macaulay and was included in the Indian Penal Code in 1870, as the Section 124A. The section seeks to prosecute persons for sedition if their “words, either spoken or written, or by any signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law”. The punishment for sedition is three years jail time which can extend to jail for life, along with the fine.

In pre-independent India, nationalist leaders like Bal Gangadhar Tilak and Mahatma Gandhi were charged with sedition by the British for writing against the government. In 1897, Tilak became the first political personality to be persecuted under the sedition law thrice. He spent six years in jail for his “seditious” speeches and writings in his newspaper, "Kesari”, which allegedly incited hatred against the British government.

On March 10, 1922, Gandhi was arrested for sedition in three of his articles that appeared in his weekly, “Young India”. These articles were titled ‘Tampering with Loyalty’, ‘The Puzzle and its Solution’, and ‘Shaking the Manes’ and allegedly promoted “disaffection” towards the government. The Bombay High Court sentenced Gandhi to six years of imprisonment, but he was released after two years in view of his poor health.

“Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC. Affection cannot be manufactured or regulated by law,” Gandhi had said.

When Jawaharlal Nehru was the prime minister, Parliament amended Article 19(2) substantially. It broadened its scope by including “public order" among the permissible grounds for restriction of free speech and narrowed its operation by adding the word “reasonable" before “restrictions".

Before the amendment to Article 19(2), the Punjab High Court had already held that sedition was incompatible with free speech in a democratic republic, and had struck it down as unconstitutional.

The constitutional validity of Section 124A was challenged in the Allahabad High Court when one Ram Nandan challenged his conviction for an inflammatory speech. The court overturned his conviction and declared Section 124A to be "unconstitutional".

In a landmark judgment by the Supreme Court in the Kedar Nath Singh versus State of Bihar case in 1962, the court held that the sedition law was "constitutional" and observed that "the feeling of disloyalty to the government established by law or enmity to it imports the idea of tendency to public disorder".

Subsequent regimes in free India have failed to repeal the sedition law, though sedition and seditious libel have been abolished even in Britain under Section 73 of the Coroners and Justice Act 2009.

The freedom of speech and expression guaranteed under Article19(1)(a) to the press covers the right to criticise the government, as well as the right to hold unpopular or unconventional views. But the liberal interpretation and use of sedition law, where criticism of the government is being construed as disaffection towards the state, has created a grey area. That is perhaps the reason why many sedition cases do not stand the scrutiny of law.

The Law Commission headed by a former Supreme Court judge, B. S. Chauhan, had recommended that it was time to rethink or even repeal the provision of sedition from the Indian Penal Code. It had also stated that an “expression of frustration over the state of affairs cannot be treated as sedition”.

In post-independence India, an "error" in judgment while reporting news, a hasty tweet or a Facebook post or an "unverified" scroll in a television channel (in the mad race to be the first to report) can land a journalist in deep trouble, attracting charges of sedition too.

According to the National Crime Records Bureau, 47 cases of sedition were booked in 2014. The number of cases dropped to 30 in 2015, rose steadily to 35 in 2016 and to 51 in 2017, and jumped to 70 in 2018.

In a reply in the Rajya Sabha in March this year, Union minister of state for home G. Kishan Reddy said 93 cases of sedition had been registered in 2019. He said 96 people had been arrested, and charge-sheets were filed against 76 people and the courts acquitted 29 persons.

The media site article-14.com keeps tabs on failures of justice and deficiencies in the legal system. According to it, there have been 816 cases of sedition registered since 2010. Of these, 65 per cent were charged after May 2014.

As many as 279 cases were booked and 3,762 individuals charged with sedition during the Manmohan Singh government (2010-2014). But 519 sedition cases against 7,136 individuals were booked during the Modi government (2014-2020). The highest numbers of cases were in Bihar (168), Tamil Nadu (139), Uttar Pradesh (115), Jharkhand (62) and Karnataka (50). A majority of cases were booked during the agitation against the Kudankulam nuclear power plant, farmer agitations, anti-CAA protests, Patidar and Jat agitations, and protests relating to Covid, the rape-murder in Hathras and the terrorist attack in Pulwama in which 40 paramilitary personnel were killed in February 2019.

Legal experts say that the sedition law has no place in a democracy as the Indian Constitution guarantees freedom of speech and expression. Dissent and criticism are what make the democracy robust.

Says Harish Narasappa, lawyer and founder of the civil society organisation DAKSH: “The sedition law has always been misused. But over the last few years, there has been an increase in the cases filed. There is hardly any party which has not misused this law to crush dissent. But a government with heavy majority gets emboldened to use this law more frequently. The judiciary not being responsive enough to protect the citizen rights is also a worrying development. Such laws have no place in a democracy as the people have the right to protest against an elected government.”

It is a fact all the previous regimes too have used the sedition law indiscriminately against writers, activists and students. But some political parties like the Congress and the Communist Party of India (Marxist) are now in favour of repealing the “redundant” law.

The Congress election manifesto 2019 promised repeal of the sedition law. Rajeev Gowda, MP and convener of the Congress manifesto committee, had defended the party’s stand saying, “Sedition law has been misused a lot against journalists, university students and environmental activists and it is crushing the right to dissent. We are concerned about the national security and anti-terrorism issues. But there are other laws like Defence of India Act, the Unlawful Activities (Prevention) Act to tackle them with safeguards. Sedition law has become redundant because of subsequent laws.”

Prime Minister Modi was quick to ridicule the Congress manifesto. He said during an election rally in Arunachal Pradesh: “The Congress wants to encourage those who burn the Tricolour or chant Bharat tere tukde tukde (we will break up India), or those who play into foreign hands, those who disrespect our Constitution, break the statue of Babasaheb Ambedkar (leader of the Constitution drafting committee). Tell us, should we not have a sedition law to deal with those who work against the country?”

A saving grace

“There is no merit in a majority of cases filed under Section 124A, but the ruling party achieves what it intended to — crushing dissent. Despite the Supreme Court’s guidelines, the police continue to file cases under Section 124A and the lower courts admit them. The cases do not stand the scrutiny of law. But here, the legal process is the punishment,” says Harish Narsappa. Speedy trial, as guaranteed under Article 21, is the only hope as of now, he says.

The courts admit sedition cases as they are booked under the existing laws, and it is the prerogative of the legislature (Parliament) to push for its repeal. While, many elected representatives admit in private that the law should be repealed, there has been no wider consensus in Parliament, as it suits those in power.

"The Congress party promising to scrap the sedition law in their manifesto is a welcome move and it needs wider consensus in Parliament. But the Congress is as guilty as other parties, as it had the opportunity to repeal it when in power," says Harish.

The International Federation of Journalists (IFJ) joined forces with the International Press Institute (IPI) and gave a joint call for the Indian authorities to take urgent action to prevent the increasing use of sedition laws and other legal sanctions to threaten and silence independent journalists.

“Charges of sedition against journalists and activists for reporting or commenting on the protests, and attempts to curb freedom of expression on social media, are disturbing departures from essential human rights principles," said Michelle Bachelet, UN High Commissioner for Human Rights, during the 46th session of the Human Rights Council while referring to the farmers' protest in India.

India is ranked 142 among 180 countries in the World Press Freedom Index 2020. In its annual Freedom in the World report released on March 3, US-based NGO Freedom House downgraded India from the “free” to the “partially free” category.

Sweden-based V-Dem Institute said India was no longer an “electoral democracy” and classified the country as an “electoral autocracy”. It said much of the decline in democratic freedoms occurred after the BJP’s victory in 2014. The independent research institute, based at the University of Gothenburg, has been publishing data-based worldwide democracy reports since 2017.

External Affairs Minister S. Jaishankar slammed them for their “hypocrisy” and called them “self-appointed custodians of the world who find it very difficult to stomach that somebody in India is not looking for their approval”. Citing the supply of Covid vaccines to more than 70 countries by India’s “nationalist” government, he wondered about the contribution of “internationalist countries”.

The free speech debate, it appears, can never be conclusive.

This article originally appeared on The Week and has been reproduced with permission.